0. Abstract

1. Preamble 

Such a way of living can be regarded as a blessing or a curse. In today's Western liberal democracies it is invariably regarded as a blessing, at least prima facie, and freedom is writ large, even when the precise contours of freedom, and above all its philosophical concept, remain ill-defined. For instance, freedom is often understood today as a synonym for democracy which, in its proper sense, is a form of government, but has come to cover all sorts of phenomena where 'people' have liberties to do or say whatever they want. Freedom first has to be conceived in a far simpler and originary way to bring it to light as what it is, and should not be associated immediately with political freedoms that make sense only in relation to a political constitution and the institutions of government. 

Only by starting with an elementary conception of human sociating can it be seen how freedom and risk are two sides of the same coin, for the free interplay among free individuals is itself groundless and therefore also risky. When freedom reveals its converse, risky side, it also loses its undiminished shine and develops shadows, and many individuals flee and rather renounce or compromise freedom in favour of a binding ground and a secure way of living. Thus, it will turn out, the concept of the free individual must cover also the unwillingly and willingly unfree individual in a way yet to be delineated. But what, more precisely, is free interplay? Is it a 'model' that presupposes unfettered interaction among and the unhindered movement of human individuals analogous to the 'model' of free markets in economics that are said to presuppose 'perfect competition'? No. In the first place it means simply the interplay among human beings conceived as the groundless points of origin of their own actions, even when the situation in which they find themselves is subject to constraints.

By taking an elementary paradigm of free interplay as the starting-point for considering how the question of justice arises in the first place, and analyzing its structure, the present inquiry reveals socio-ontological intentions. It is ontological because it considers the being of the elements and interrelations it considers, thus introducing ontological concepts such as value and power that are invariably simply taken as read throughout Anglophone moral philosophy; and it is socio-ontological because the elementary sociation of human beings, that is, how they share their world with each other as free individuals, is the focus of attention. The initial situation is abstract in the sense that it focuses on few determinations and abstracts from many others in order to bring a simple structure to light which can later be enriched with more determinations, thus becoming more concrete step by step. It is indispensable to start with a simple, elementary, abstract and underdetermined situation, for otherwise the ontological structure cannot be seen and, instead, a multitude of always-already understood, ontic considerations whose ontological status is never clarified will gain the upper hand and muddy the waters in those clever rational arguments of which analytic philosophy is so enamoured. To philosophize, the Greeks may one day reteach us Anglophones, means to learn to see, i.e. qewrei=n, speculate. To see what? It's staring you in the face: the being of beings. Philosophy, too, is a savage power struggle over who-status. So, without lengthening this preamble further, what is this elementary paradigm of free interplay from which a socio-ontological structure can be read? 

2. The socio-ontological structure of free interplay as original situation for considering commutative justice 

I can only lead my life via many interactions with others through which I negotiate an existential path through the world. To make my way, I have to rely also on what others can do for me. This requires a transaction of give and take, not of submission and surrender and compulsion, for in the modern age the individual has gained universally the status of personhood with a right to life and the liberties of freedom of movement, of being able to privately own material goods that enable a more convenient life, and of being respected abstractly by others as a free human being with an inviolable dignity. The abstract status of personhood demands from others that, even if they are completely indifferent to me, they nevertheless at least have to accord me abstractly the dignified status of a free person, which can be summed up as polite civility, including physical inviolability. Polite civility is the minimal demand for the recognition of personhood and constitutes the core of abstract right. The others cannot rightly denigrate me in who I am, and only on this basis of mutual abstract recognition as persons do we enter into relations, including transactions with each other. 

If the mediation of money is bracketed off for the time being, the give-and-take transactions I negotiate with others are based on what I can do for them and what they can do for me. Our concrete abilities come into play. If I am a shoemaker and you are a physics teacher, I can offer to make you shoes and you can offer to teach me physics, and we may actually agree to exchange these services on a mutual basis if I want to learn physics and you would like another pair of shoes. Alternatively, we may exchange by mutual agreement the finished products of exercising our abilities, such as a pair of shoes or a physics text book, which amounts to the same thing. Each of us has abilities, which are powers to make a productive change in the world, to perform a productive movement, and the products of the exercise of an individual's abilities are its private property, which represents an extension of the sphere of individual personhood that must be respected by others. If products are exchanged, the materials and tools employed in the exercise of productive abilities must already be the individual's property, say, through previous exchanges, but this is a detail that can be left aside here. Note that this simple schema of exchange is not to suggest that we are discussing the 'model' of a 'primitive' artisanal economy by which we are called upon to let our imagination run riot to imagine what it would be or was like living in such a kind of historical society. Rather, the elementary exchange situation is abstract, or underdetermined. It is not even specially considered at this stage that tools and materials and training are ontic prerequisites for being able to offer the services of, say, shoemaking or physics-teaching. 

It will be conceded that in today's world, and not only today's, it would be impossible to shape and lead one's life without myriad ongoing exchange transactions with others through which we come to enjoy the fruits of their abilities. This is usually referred to as a social division of labour. We exercise our abilities continually on a daily basis in each other's favour and for each other's benefit within a framework of mutual agreement called a transaction or contract, here considered initially without its legal connotations. Our abilities and the products thereof have exchange-value. If the mediation of these transactions by money is introduced, the exchange of services by mutual agreement becomes indirect and also universalized since money is the universal equivalent that has the abstract social power of purchasing anyone's services and the products of anyone's labour which are offered on the market. Thus, millions of concrete abilities and their respective products come to be abstractly and practically equalized with one another as exchange-values via the mediation of money as the abstract, universal mediator. This abstract equalizing is firstly an abstraction from the concreteness of the abilities in the generalized exchange of abilities which ultimately results in quantification in a mere amount of money, for it is money that practically achieves this abstraction. 

Since the exchange of services is by mutual agreement, it depends on the spontaneity of two exchangers as groundless origins of their own life-movements, each of whom decides whether to exchange and in what quantitative proportion. Even if one (or both) exchangers is under compulsion by external circumstances to make a deal, the status of both as free, i.e. as groundless origins of their own movements, cannot be expunged. The simple exchange of abilities or the products of their exercise is the initial situation, or primal scene of sociation in which considerations of justice arise, for the exchange is only just if it is neither one-sided (e.g. through stealing, which is also a violation of personhood), nor fraudulent (through misrepresentation of the services or products exchanged), nor far removed from the going exchange-rate (a fair and reasonable price corresponding to current market conditions), nor deficient in performance (the transaction must actually be carried out under the agreed terms). When the transaction is actually completed under the agreed terms without tricks and to the mutual satisfaction of the exchangers, it is just and fair. 

Such completion depends on the coincidence of two free wills agreeing and performing what they have agreed to, so it must not be confused with production in which an object of labour is worked upon by an able individual exercising its abilities. Insofar, in contrast to productive power that could be exercised surely and with a pre-envisaged outcome, namely, the product, an exchange transaction, even in the most simple primal situation delineated here, only comes about through an interplay of bargaining wills and is therefore always and essentially subject to the risk of such interplay. For the most part, exchange transactions go on in daily life without a hitch; the exchangers are mutually satisfied, for each of them gets what he wants in return for what he gives, and in the agreed proportions. The exchange is regarded as fair and the daily interplay is fair sailing. Mutual trust forms a basis for the endless transactions required for daily living, and transactions come about within the framework of mutual abstract recognition as persons, respecting each other's dignity as individual origins of free will (e.g. without coercion). Only when the transaction is unfair in some respect, including violating the status of the transaction partners as persons or something untoward in the content of the transaction itself (e.g. fraud) and its performance (failure to perform as agreed, breach of contract), does an issue of justice become conspicuous as such, and an adjudicator is called for. This can be called the primal situation of the judge, who is called upon to adjudicate the fairness of exchange transactions of all kinds, including those interchanges in which the dignity of personhood itself is not respected, such as insulting or assault. 

The kind of justice pertaining to the exchanges in everyday life of all kinds is called, following Aristotle, commutative or corrective justice. It is commutative because it pertains to the commutations (sunalla/gmata cf. Eth. Nic. V 1131a1), transactions or interchanges of everyday life and it is corrective because it pertains to correcting any unfairness in such exchanges and interchanges. 'Corrective' is therefore a negative determination pertaining to the positive determination of a fair commutation. Since the transactions are agreed and performed between free persons, the protection of personhood should be included in an extended concept of commutative justice, and violations of personhood not merely corrected, but punished. The punishment of violations of personhood is the task of a judiciary. Daily life is therefore conceived here as consisting of the ongoing exercise of individuals' abilities in each other's favour on a basis of mutual agreement and thus as a complex interplay that remains risky and uncertain in essence, relying as it does on the intertwining of free wills. The conception of commutative justice as the fairness of transactions within a framework of mutual abstract respect as persons is itself not a matter of mere convention and consent, but arises of itself out of the practice of free exchange based on mutual agreement. 

3. The gainful game among competitive players(2) 

The crucial step has already been taken, however: the exchange-value of labouring abilities or their products is exercised and comes about as a power to acquire, by agreement, a good which another has. Exchange-value must therefore be understood as a power (for its exercise can bring about a change, namely, an interchange), but as a power sui generis, because its exercise is only possible by intermeshing, by agreement, with another who likewise has an exchange-value in the form of an ability or finished product. Exchange-value is the elementary concept of social power in accord with freedom, whereas physical violence against others could be regarded as the most elementary concept of social power pure and simple. What proceeds on a daily basis on the markets is hence properly called a power interplay of exchange-values based on mutual recognition and estimation of those powers. Once money comes to mediate exchange, it acquires as a mere thing the power to exchange for anything on the market and is therefore the crystallized embodiment of universal exchange-value, a social power par excellence. This goes hand in hand with the real illusion that exchange-value itself is the property of a thing and hence has a power (of universal exchange) residing in itself as such, an illusion which Karl Marx termed 'fetishism'. The social power of money is real enough, but it rests on a play of mutual estimation of human powers and abilities and thus on an interplay of human freedom. 

In a money economy, the daily lives of individuals necessarily assume the trait of earning a money income. Money must be had to mediate the exchanges that are part of shaping and leading a life. Hence income-earning activity, too, must be regarded as an essential aspect of sociation emanating from free persons exercising their freedom to shape their lives. With the advent of money, a second possibility also arises: value reified in money can be employed to hire labour power which is set to work to provide services or produce finished goods for the market which are sold on the capitalist's account, and not the labourer's. The labourer expending his labouring powers under a wage agreement with the capitalist receives for his troubles wages in recognition of his labouring powers, which are a further value-form. This is the emergence of capital as a socio-ontological possibility requiring the three value-forms of commodities and money and wage-labour along with their intermeshing in a kind of gainful social movement encompassing buying, production and selling. The interplay of everyday life proceeding from the exercise of individual freedoms has become more complex and could be called specifically capitalist economic activity. Money has now assumed the value-form of capital, a further reified social power, which is also a characteristic movement from money advanced to an augmented money-sum returning, and income from transactions now has three value-forms: sales revenue, wages and profit. Gainful activity is conceptualized more complexly in terms of value-forms and the movements enabled by them. As capitalist income-earning there is a power play not just on the markets on which abilities and products are traded, but also between the capitalists and those hiring out the exercise of their abilities, who can be termed the employees of the capitalist employer to avoid misleading exclusively 'blue collar' connotations of the word 'labourer'. 

The refinement of the value-forms proceeds further, for (functioning) capital itself can split into productive and circulation capital concentrating respectively on the spheres of production and circulation, and also into functioning and finance capital with the latter lending money-capital to the former in return for interest, which is a further value-form. Furthermore, finance capital can invest capital in functioning capitalist enterprises in return for a cut in the net profits, which is paid out as dividends (divisions of profit of enterprise). Through the mediation of finance capital, even income-earning employees can become lenders and investors in capitalist enterprises, thus deriving interest and dividend income. All this is enabled socio-ontologically by the complex, interlocked structure of value-forms and the gainful movements they enable. 

Finally, there is the value-form of ground-rent that arises from lease transactions between capitalists and landholders who can demand a rent for leasing access and use to pieces of the Earth's surface they monopolize through private ownership. All these many different kinds of transactions are, in the strict sense, social power plays among individual and collective players striving to earn income of all kinds. Collectives arise naturally through individuals' agreeing to form a company of some kind or other and hence are also an expression of the exercise of the freedoms associated with earning income. Such collectives based on a common interest may be organized more or less hierarchically with those higher in the hierarchy enjoying a certain social power of command that is recognized on the basis of contractual agreement. Individuals and groups thereof compete on the many different kinds of markets distinguishable according to the value-forms within which they move. The entirety of this socio-ontological value-structure and its movement can be called the capitalist gainful game emanating ultimately from the power plays among free individuals striving to earn income that serves to support their lives according to their self-determined life-plans. 

One could say that the gainful game among free individuals exercising their freedoms as persons estimating each other's powers results inevitably in this complex socio-ontological structure of interdependent value-forms. The striving of free individuals for a life shaped by free will unfolds the various ramified reified value-forms and the economic movements within them, but starts with the lively striving of individuals, as sources of power residing in their abilities, to have them estimated and validated. Capitalist society appears as an ongoing, daily competitive struggle among revenue-source (or income-source) owners striving to gain their respective kinds of revenue/income, namely: wages (including salaries), ground-rent, interest, and profit of enterprise, which latter is the residual remaining for the functioning capitalist firm, which may, in turn, be paid out as dividends if it is a collectively owned joint-stock company. This completes the set of basic value-forms that fit together to form the capitalist gainful game in which all income-earning individuals are involved. There is, of course, no end to deriving further higher-order value-forms, since money as reified value and contractual agreement as the form of interplay offer many opportunities for imaginatively inventing new tradable market values, odd hybrids and stratospherically derivative financial products such as discounted bills of exchange and accounts receivable, stock, bond and real estate investment funds, futures contracts, interest swaps, investment certificates, collateralized debt obligations, synthetic collateralized debt obligations, etc. etc. All the basic value-forms and the further, higher-order derivative value-forms of the gainful game are overlaid over the elementary value-form of the mutual exchange of individual powers and abilities, which is the as yet (dialectically speaking) non-reified interchange of mutual estimation in which sociating, social value first comes about socio-ontologically. 

The development of the various value-forms is simultaneously the development of various kinds of social power that come into play in the competitive struggle. For instance, land has the social power to draw a ground-rent income for its owner by being leased to a capitalist firm. Because the complex interplay of powers takes place via the exercise of many free wills, it hovers over a groundlessness and is inherently incalculable and risky and subject to sudden game-changes. There are no guarantees in the striving for income, and no surely precalculable outcomes, but only gainful power plays that may either win or lose. The competitive gainful game is one played on continually shifting sands, and firm contracts offer only temporary respite from market uncertainties. "Through their own free actions within the form of contract they [the subjects of competition = players in the gainful game] inaugurate their subjection to a process under no conscious social control."(3) This process resulting from interplay can appropriately be called a game. The proper socio-ontological name for capitalism is the gainful game. 

Thus insight is gained into the intimate intertwinedness between the play of individual freedoms and the riskiness of such freedom for individuals, groups thereof, and even the economy as a whole which is a game beyond any instance's control. The socio-ontological structure and movement of the gainful game within this structure is not a 'model' constructed from reality, nor is it an imagined stateless state of nature, nor is it an hypothetical choice situation set up to choose 'principles of justice' by agreement, but rather it is an abstract thought-structure with full validity attained by thinking through certain well-known elements abstracted from everyday life as we know it, moving dialectically from one appropriately conceptualized element to another. Despite appearances to the contrary, any way at all of approaching issues of justice in society has to be abstract in the sense that it focuses on certain elements while bracketing others off, but this is disguised by spinning an 'accessible' narrative or by presenting plausible explanations that leave the vital questions glossed over and unanswered. When a philosopher writes 'accessibly', it is a sure sign that the deeper philosophical question has been begged for the sake of not overstraining the reader's understanding. Even the socio-ontological structure of the gainful game as sketched above has gained a certain concreteness because it is the concretion of many determinations, starting with consideration of the simple exchange of individual abilities. The ontic complexity of the gainful game, the possible moves by the players within the game are sheer endless, for the socio-ontological structure is not a rigid framework, but permits and enables infinite kinds of movement motivated by gainful strivings and strategies. 

The gainful game as both socio-ontological structure and movement is the appropriate initial situation for considering commutative justice among free individuals in power-interplay with one another as abstract persons, for it covers the gamut of the possible kinds of social power plays in which issues connected with commutative justice arise. Moreover, the intermediate conclusion can already be drawn that it is commutative justice, and not distributive justice, that first arises as an issue from the social life generated by a plurality of freely interchanging individuals sharing a world. This represents a major objection against Anglophone justice theory. 

4. The political power play around the state as complement to the gainful game

Despite all the endless talk of capitalism, its defence and critique, its crises, instability and achievements, the gainful game as an historical socio-ontological value-form constellation has remained to date entirely invisible, with the exception perhaps of a handful of readers of Marx's esoteric value-form analysis. Economic theory and left critiques of capitalism of all kinds therefore, in a strict sense, do not know what they are talking of, that is, the whatness of capitalism, its essence, has not been brought to light in adequate ontological concepts. Hence crucial controversial issues concerning capitalist economy have a distressingly vague orientation on key phenomena such as value, money, capital, 'exploitation of labour', economic growth, 'exploitation of nature', sustainability, etc. etc., and important debates do not proceed beyond idle chatter, ideological, polemical, rhetorical, apologetic or otherwise. 

The abstract form of intercourse among players in the gainful game is the contract, which is fair and rightful when entered into and performed to the mutual satisfaction of the contractual partners, or unfair and wrong when there is a perversion of the mutual consent of two free (natural or collective) persons, as in the case of theft, fraud, non-performance, etc. Theft, for example, can be regarded as a limiting case of contract when the exchange of property becomes one-sided, depending only upon the will of the thief and without the consent of the thief's victim. Any disturbance to the contractual form of free exchange is at first only alleged by one of the parties and, if the conflict cannot be resolved, it must be referred to a third party for adjudication. Similarly, if the abstract personhood of individuals as free and with a right to life and liberty (which status is the precondition for any contractual intercourse) is violated (e.g. working conditions injurious to health), this complaint, too, must be referred to a higher instance, the judge, whose task it is to set it right and perhaps mete out punishment. The protection of persons' lives and property and the ensuring of rightful contractual intercourse is the function of the judge and is the seminal function of the state: it must uphold the forms of intercourse of the gainful game among free players, and it can do so only from the position of a superior, unbiased instance to which the player-property-owners must submit, thus becoming the subjects of this superior instance. Hence, once again, a further social power arises through an act of recognition, and the state as the superior instance of contractual, commutative justice in the broadest sense is recognized as legitimate and necessary in line with the very freedom of free players. The gainful game itself, generated by value-forms and the movement within them, thus assumes the form of appearance of civil society composed of citizens. One could say that the gainful game doubles into state and civil society. 

The judicial instance must be assisted by a police force that is able to bring alleged offenders before a court, if necessary by exercising physical force, which, as mentioned above, is another kind of social power, of human bodies over human bodies. Once again, the police force is legitimate and necessary insofar as it acts in accordance with the rightful demands of freedom. The judiciary adjudicates on alleged wrongs not simply ad hoc from case to case, but on the basis of precedents and written laws that lay down the specifics of rightful intercourse between the members of civil society. The interplay among players of the gainful game thus assumes the character of being rightful when it is legal, and the state is said to rule by rule of law. Such law is only rightful if it corresponds to and upholds the 'natural' freedoms of intercourse among free persons striving as income-source owners for gain, but such rightfulness becomes obscured by mere legality. This provides an extremely brief outline of how the minimal state, comprising judiciary, police force and rule of law, can be thought through socio-ontologically as a social power recognized and legitimated by the citizens as in accordance with individual freedom. This minimal state is thought entirely on the basis of a concept of commutative justice. 

As is well-known, however, the state assumes powers that go well beyond those adumbrated so far as belonging to a minimal state. This is where issues of distributive justice quickly arise and also the issue of how the rule of the state over free citizens can be reconciled with freedom insofar as those holding any kind of office in the state wield a social power over citizens which itself, in turn, must be controlled, for any social power can be abused and above all corrupted by the power of money. This latter issue gives rise to the democratic form of government which, in turn, controls state power, especially by legislating laws whose implementation is the duty of the judiciary. Insofar, democracy and its institutions can be regarded as still a component part of the minimal state, and also taxation justified as that tribute from civil society necessary to support the apparatuses of the minimal state. But the government's legislative will oversteps the boundaries of what is required strictly to uphold merely the forms of intercourse of the gainful game, and it may do so also at the behest of the people's democratic will as expressed in elections. Government policy is formulated in terms of the well-being of the people that elect it, and well-being is understood as the good life actually lived by people, delivered by the gainful game, and not as providing merely the boundary conditions within which individuals can strive potentially for income and thus take care of their own well-being and happiness.

The government's positive, legislatively posited will to further the ostensible well-being of the people diverges from the minimalist will to uphold the forms of competitive struggle in the gainful game in a bewildering, infinite number of ways. One example is the government provision of public services such as state educational institutions or public transportation; another is the granting of industry subsidies to rescue jobs, which is always popular with (segments of) the people. Over such government policies there is debate in civil society mandated by citizens' rights to free speech which is carried out in media of various kinds, starting with newspapers. The elected government's policy itself becomes a matter for debate and political struggle around state power itself. Political parties with differing party programs embodying competing versions of the people's well-being arise, which compete in the democratic election process to win government. These political parties, in turn, are lobbied by the many different groups within civil society with opposed aims, thus infecting and buffeting conceptions of the people's universal well-being, i.e. the common good, with many different particular interests. The competitive struggle of civil society, which is the ongoing power struggle of the gainful game, broadens to and is complemented by political struggle over government control of the state and the determination of policy. 

The political struggle is waged in terms of differing conceptions of the people's well-being (leaving aside here matters of national interest in relations between states) which include programs to redistribute the incomes achieved in the competitive gainful game. Only in this context do conceptions of distributive social justice with regard to society's income and wealth come to the fore and have a foothold in political feasibility. This is because only with the state as a concentrated instance of social power standing over civil society, and legitimated by the recognition procedure of democratic elections. is there a power great enough to effect a redistribution of wealth and income. For the sake of a conception of distributive justice, the freedoms of the gainful game for income and wealth accumulation may well be curtailed and sacrificed. From the perspective of distributive justice, society as a whole appears as a kind of machine for producing reliably and securely the output of the people's well-being. Distributive justice comes to be a vital issue of political struggle around the state rather than the countless issues of commutative justice as fair play that arise already in the competitive struggles of civil society. Because issues of distributive justice concern the well-being of the people in how they actually live and enjoy their lives, issues of commutative justice which concern the fairness of power plays in the gainful game in the exercise of individual and collective freedom become less tangible. Actual outcomes of versions of government policy embodying conceptions of the people's well-being, which can be pointed to in their facticity, gain precedence over potential opportunities for which the state provides only the framework for play, i.e. the politico-social playing field for the gainful game. 

The whole of a democratic capitalist society is thus suffused through and through with power struggles on many different levels that are all part of the movement of such a society itself that never comes to any final end-state or any final resolution or harmony. There a two fundamental media of social power for these power struggles: money and political office, as well as their intermingling. The polity's constitution with its constituent political institutions is supposed to guarantee that the political power struggles over government control of the state and momentous government decisions concerning the people's well-being are carried out fairly so that, in the end, issues are resolved and the people's universal well-being wins out over particular sectoral interests. The constitutional court as a certain pinnacle of state power in a division of powers is called upon to adjudicate, among other things, on issues of how the state itself can legitimately exercise its political powers. So much in outline on the state as a socio-ontological structure. This will allow us to situate and assess recent Anglophone debates on justice. 

5. Recent debates on justice in Anglophone moral philosophy and the disappearance of commutative justice 

Regulae autem Iustitiae fundamentales, seu Utilitatis publicae sunt duae: (1) ut ne cuiqvam auferatur res (sine vitio) possesso [...] et (2) ut cuiqve tribuatur qvantum ipso opus est ad publicam utilitatem juvandam. [...] Illa regula juris stricti fundamentum est, haec aeqvitatis. [...] illa est justitiae commutativae, haec distributivae. (G.W. Leibniz 'Brief an Conring' in Frühe Schriften zum Naturrecht (ed.) Hubertus Busche, Meiner, Hamburg 2003 p. 328f)
 

Now, there are two fundamental rules for Justice or public Utility: (1) that no one will have taken away from him (without fault) a thing he possesses [...] and (2) that everyone is to be attributed the amount needed to promote public utility. [...] The former rule is the strict foundation of right, the latter of equity [...] The former is commutative justice, the latter distributive.


 

The disappearance of commutative justice in recent Anglophone discussions of justice in political and moral philosophy and social theory in favour of various schemes of purely distributive justice is no accident. There are those who deny altogether that there is even an issue concerning commutative justice, i.e. the justness relating to the transactions and interplay in civil society. It is important to deny that there is such a thing as commutative justice in social interplay in order to strip it of any status as having, of itself, just and fair outcomes that have to be 'lived with'. Rather, the outcomes have to be measured against criteria of distributive or social justice, and therefore, for adherents of Rawlsian, utilitarian or egalitarian principles of justice, it is entirely just, even self-evidently so, to revise outcomes of the gainful game by means of the superior power of the state to meet distributive criteria of some kind. Instead of the fair interplay of potentials, of social powers at play, it is only the actual, factual outcomes of the power interplay that can be assessed 'objectively' as just or unjust. Hence there are countless empirical sociological studies on so-called 'social justice'. 

One critic of the commutative/distributive justice distinction claims that "commutative justice, when not directly relying upon a broader distributive background [...], is merely a matter of fulfilling promises, or performing contractual obligations, and as such, is not a matter of justice at all".(5) Sadurski adduces two examples to prove his point: 

The payment of a salary by an employer may be considered both as the exchange of money for labour (commutative justice) and as the payment of a salary to an employee based on her rank (performance, qualifications, etc.) within a given structure (e.g., an enterprise), in a way that is proportional with the way salary is differentiated within that structure (distributive justice). And because the goods 'exchanged' (labour, money) are ultimately incommensurable, the only way we can assert our view as to the 'equality' in this exchange is against a background which is par excellence distributive: by comparing this particular employer with those who earn more and those who earn less, and checking if the salary paid is proportional to whatever we consider to be a morally proper basis for a salary differentiation. 

The case of a (putative) duty to fulfil an unjust promise (for instance, to murder someone), or to keep an unjust contract, [...] yes, we have a general duty to fulfil our promises and contractual obligations, but not necessarily when the consequences of such actions would prove unjust. And if this is the case, then it seems to me natural to say that principles of justice may, at times, collide with the general duty to keep promises. And if the latter can collide with the former, then the latter cannot be part of the former. 

John Rawls' Theory of Justice from 1971 and Robert Nozick's libertarian reply, Anarchy, State, and Utopia, from 1974 stake out the territory for much of the Anglophone debate among professional political and moral philosophers since then. Rawls' book itself is a response to, a further development of, and a compromise between two positions on distributive justice dominant since the nineteenth century: egalitarianism and utilitarianism. What is to be distributed are primarily the material goods produced as an output by society as a whole, along with positions in hierarchies and political offices in the state. Hence there is a link to political economy, itself originally a branch of moral philosophy, and economics. By contrast, Nozick is concerned first and foremost with individual freedom, which is a power, potency or potential, and never a realized, finished, actual outcome.

5.1 Walzer's plurality of distribution systems 

Walzer's first chapter goes on to discuss a "theory of goods" in which material, economic goods play the dominant role. The market is treated as "one of the most important mechanisms for the distribution of social goods". Again exchange is treated as distribution. By contrast, as we have seen (3. The gainful game among competitive players), exchange is to be grasped as an interplay of potentials, of powers among players striving for gain in which the outcome is uncertain, whereas, viewed from the total output of the social exchange process, the play of exchange results in an actual distribution of material goods. The exchange process is where the exchange-value of goods becomes actual as a power to acquire another good, which is a gain for both parties to the transaction, but even actualized exchange-value must be distinguished from total social distribution. As means of exchange, and not as a 'means of distribution', money must be conceptualized as a reified value-form mediating the ongoing exchange metabolism of the economy. The connection between commodities as value-form and money as value-form is made through a dialectic (cf. e.g. Plato's Sophist) between ontological concepts that grasp the being of commodities and the being of money. In Walzer's scheme of things, however, money is made invisible as a means of exchange; it is subsumed beneath the determination of means of distribution. Instead of being a value-form as a reified social power, money as a tool, a "mechanism" for social distribution is muddled up with many other distribution systems of social values such as social status and social honour systems in all kinds of societies all over the world and at all historical times. 

Hence, although Walzer quotes Marx on money copiously throughout his book, he nowhere grasps the socio-ontological concept of money in its significance. The issue of the free interplay on the markets mediated by money that is linked to the very possibility, historically, of the free individual, thus necessitating consideration of the commutative justice of this interplay (and not merely of its just distributive result), is glossed over. An entire problem for the possibility of justice is made to disappear as a non-issue, and Walzer contents himself with gathering materials and examples from many different sources to underscore, in sociological fashion, his thesis of a plurality of spheres of justice. No attempt whatever is made to undertake a connected conceptual analysis of these different spheres that would bring their being as such to light. A plurality of spheres of justice constituted by a disjointed jumble of different kinds of distributive justice jockeying alongside each other is supposed to justify Walzer's appeal for pluralism, while at the same time ignoring the deeper-lying conflicts between individual freedom as a social interplay of powers, and criteria for an attained, actual distribution of social goods of all kinds. Social and political power struggles can be talked about endlessly, drawing on historical and sociological material, but in this way the entirely familiar phenomena of power and power struggles can never come to their adequate socio-ontological concepts. Hence, for example, in Walzer's hands, Hegel's ontological phenomenology of a "struggle for recognition" becomes a bland "sociology of titles" (Chap. 11). 

5.2 Conceptions of distributive justice and the welfare state 

Egalitarian doctrine proceeds on the basic premise of free birth as the criterion for the distribution of total social material goods: because each individual human being is simply born free, it has a right to an equal share in the social product, and the political constitution of a just society must be such that equal apportionment of produced material goods is guaranteed and realized. Utilitarianism is concerned with maximizing the utility or happiness of a society which comes down 'materialistically' to maximizing the total income of society's members: that distribution of total social material output is just for which its maximization is attained. Rawls proposes a middle course, captured by his "difference principle" which postulates that deviations from equal distribution of total material output are just insofar as the material standard of living of the "least advantaged" is raised. In all three of these positions on justice, society is regarded as a kind of machine for producing material well-being. For such a conception, individual freedom becomes relativized to considerations of productive efficiency, and it is precisely in such terms that individual freedom has come to justify itself: 'we' as a whole are better off materially by virtue of the productive efficiencies of incentivized individual freedom. 

Moreover, since the orientation is toward maximizing and sharing out total material output, the secure precalculability of such output gains in weight. The total productive machine called society, to be just, ostensibly should securely produce well-being for all, and the riskiness of freedom in its social interplay becomes a negative to be avoided. Rather a bird in the hand than two in the bush. The egalitarian, Rawlsian and utilitarian conceptions of distributive social justice meet the requirements of social policy-makers advising the government on issues such as redistributive taxation policy, and thus debates among moral philosophers over the criteria for just distribution of total social material output become 'politically relevant' and 'practically useful'. Apart from the issue of supposedly inviolable individual human freedom, even the justness of distribution becomes subjected to criteria of measurability and practicability. An ontological determination of human being itself, that is, that the being of the human being is freedom, is not present in the debates weighing up the pros and cons of different just 'distribution models'. 

In contrast to a precalculable distribution of material well-being, the gainful game as a play of powers has an uncertain outcome for each of the players and even for the totality of players. The powers at play start with individual powers and abilities that have to be validated on the market in a mirror game of recognition. The products of labour, too, have to validate their power as exchange-value on the market. Then there are the derived social powers associated with each of the value-forms: the power of capital, of organized wage-labour, of finance capital, of landowners, each in a plurality. The fully-blown gainful game is generated by the exercise of the freedoms of private property under the motivation of earning an income of some kind. Individual freedom of the person is therefore a power, potency and potential, and not the finished presence, or actuality, of an achieved output of some kind or other (such as GDP or total well-being). For this reason, the libertarian position on justice is antithetical to all those positions on distributive justice that demand 'just' shares of the total social material product according to some criterion or other. If some version of distributive, social justice holds sway, the freedom of the gainful game motivated by individual striving must be clipped and (partially) suppressed to fit an ostensibly just distribution of total social output, and the income outcomes of the gainful game must be redistributed, which is the socio-ontological origin of the social welfare state. It is therefore a major issue of theories of distributive justice to meet the challenges posed by an ontological hallmark of human being, viz. freedom. 

One strand of this issue arises especially for traditional and Rawlsian egalitarianism when arguments are made along the lines that there are players in the gainful game, or on its sidelines, who, 'through no fault of their own', are at a disadvantage, e.g. if they are chronically ill or disabled, or simply have below-average abilities to offer to the market. Such natural disadvantages, perhaps reinforced by the social environment of someone's upbringing, are said to place such players at an unfair disadvantage that demands a compensatory redistribution of the output of total social production. But does the essential freedom of human being in itself demand such a compensation for unequal opportunities in the gainful game due to the natural distribution of individual abilities? In response to this question it must be pointed out that individual human freedom comprises not only the freedom to cast one's own life of one's own free will, grasping the opportunities that arise (or failing to do so), but also having been cast into a situation over which the individual has no control and for which no instance in particular can be blamed or praised. An individual cannot choose its parents, its natural innate abilities, its place of birth in a certain country at a certain historical period, the customs and traditions into which it is born, the Zeitgeist of a time, the way of thinking of an epoch. It is simply thrown, and this thrownness of having-been-cast is part of its freedom, namely, the negative side. Only from the present can an individual cast into the future and shape its own self in coming to terms with, and making the best of, how it has always already been cast. There is therefore no justification for a redistributive justice to even out the inequalities in the distribution of individual abilities and disabilities, but there is a case to be made for the injustice of social relations that unfairly rig the individual's starting-position in the gainful game, such as social discrimination where the abstract dignity of free personhood is denied. This is an important issue to which we shall return below (8. Anomalies in the gainful game and the political power play), taking care not to confuse issues of distributive (social) justice with social (in-)justice in the proper sense relating to discrimination. 

6. Critical appraisal of Nozickian libertarianism 

6.1 The legitimate founding of a state 

The fallacy in this state-of-nature and social-contract way of arguing lies in the very imagining of an historical emergence, as if rights inhered in individuals who could only transfer them by consent. The dilemma can be seen already by considering that individual rights, and their enjoyment and exercise, are already social; they only make sense for a plurality of individuals associating with each other on the basis of their own free will. Free association takes place in the first place via an agreement called contract according to which the contracting partners give their word to perform such-and-such for each other. Any contractual agreement is exposed to the possibility of dispute over what has been agreed. Even someone accused of blatant theft or robbery may claim legitimate acquisition of the thing allegedly stolen. Who is to decide? This is the crucial question, for even if a victim of theft takes back from the thief what has been stolen off him, who is to say that the victim is himself not a thief? Or if someone defends themself against assault, who is to say that he himself was not the assailant when each accuses the other and it is a case of word against word? Or if fraud has allegedly been perpetrated, who is to decide whether this is truly the case if the fraudster denies any wrong-doing? 

Any interchange between individuals that has infringed the fairness demanded of transactions must be adjudicated by a superior third party above the fray of the two parties' self-interests, to which both parties must submit for judgement. Hence the demand that the judge be impartial. The interchange itself has generated something beyond the individual wills of the two parties to the agreement (or non-agreement), a 'we' with a will to a fair and just transaction that cannot be located alone in either of the parties, nor in the sum of the two individual wills, nor even in witnesses to the transaction, since one or other of the two parties may contest their evidence. Individual freedom and its exercise in an intertwining of free wills necessitates both the will to fairness of the transaction and the will to have the fairness of the transaction adjudicated by a third party in the case of dispute. The case of dispute can never be ruled out in the mutually binding and intertwining exercise of free wills. In willing a transaction with each other, the two free-willed parties will willy nilly a 'we' and the adjudication by a judge of any dispute that may arise, and have therefore implicitly already submitted to a judge as a legitimate instance. 

This is already the kernel of an incipient state, no matter whether the individuals explicitly consent, in contractarian manner, to subjection to a superior instance or not. The very concept of individual freedom demands, via several mediations, subjection to impartial, superior, adjudicating instances which collectively may be called government or the state, unified under the initial determination that the judiciary is dedicated to righting (alleged) wrongs that inevitably occur wherever the freedom of interchanges among individuals is lived out. The state as protector of life, liberty and property is legitimate by virtue of its conformity to the concept of human freedom, i.e. the essential human condition of freedom, which is, at its core, individual freedom, regardless of whether it is explicitly consented to by individual citizens. If the term were not so hackneyed by common-sense, one could say the nature of human beings is to be free. 

Those who argue over justice and legitimacy in the framework of a social contract theory have overlooked that a critique of the notion of a social contract is bequeathed to us by Hegel's Philosophy of Right, a work that refuted basic postures in recent Anglophone debates 150 years in advance. To argue from a concept of freedom, of course, is anathema to Anglophone mentality, which is quick to level the charge of idealism. But freedom, if it is anything at all, is first and foremost an idea, that is, a face of the being of human being itself, an ontological sight that can come into view as an insight for the thinking philosophical mind. 

The above line of thought focuses on the conceptual (and not merely practical, ontic) necessity of a judicial instance that raises individual free will to a higher level beyond itself, and not on the necessity of a protective agency for protecting the lives and property of individuals, and therefore it deviates from Nozick's imagined historical line of reasoning about protective agencies which, as Murray Rothbard points out(7), is faulty. Such protection can well be provided already by private security forces without these attaining the status of a rightful, superior instance. Indeed, the actions of private security forces are just as much subject to judicial scrutiny as those of private individuals, and conflicts may arise when a private security guard uses force against any person when fulfilling his protective duties, which conflicts in turn require adjudication by the acknowledged legitimate judicial instance to judge whether rights of person or property have been infringed. Similarly, a police force exercising physical force over a populace in the name of protection of life and property is not the kernel of the state, for this function can be exercised also privately. Rather, a police force is, in the first place, the agent of the judicial instance which is charged with forcibly bringing parties to a conflict over an interchange before a judge when one or both of the parties refuses to appear. The physical force or threat thereof is just and rightful because the resolution of conflicts over interchanges among free persons itself is justly referred to a judicial instance. It is therefore an erroneous 'materialist' view to define the state in terms of holding a monopoly over physical violence, for the use of physical force or the threat thereof has to be legitimated cogently in the name of freedom. 

6.2 The original appropriation of (landed) property 

All original appropriation of land back in the mists of time is invariably an act of force where a group occupies land (a hunting ground, a fishing ground, pastures, fields, etc.), thus pushing out some other group. Wars and skirmishes over land may then establish habitual rights of occupancy over time in which the original struggles for the land are forgotten. For the original appropriation of land historically, right is might in the situation of a 'state of nature' in the sense that there is no acknowledged superior instance to appeal to for adjudication in the case of conflict, which is therefore, if diplomacy between the parties fails, decided by force of arms, perhaps according to acknowledged rules of war. As is apparent today, compensation for forceful and unjust occupancy of land by invasion only has relevance when the struggles over the appropriation of land are relatively recent historically and the details of previous land occupancy and land-use still alive in the memory, i.e. when it is 'as if' it were a case of a civil dispute over land rights rather than of land appropriation by conquest. Any theory of justice, such as social contractarianism, is on shaky ground in arguing historically, or even theoretically, from a purportedly innocent original appropriation of land. 

Furthermore, it is a matter of mere historical fantasizing to imagine an original appropriation of land as individual private property. Groups, tribes, peoples originally appropriate land by force which then become their territory, within which land may then be allocated to individuals, such as when a king rewards a lord, or a lord rewards a true vassal by awarding a stretch of land to him which then becomes a family estate that is handed down over generations through a line of succession. To speak of an acquisition of landed property by 'mixing one's labour' with land is a quaint notion, since territories are appropriated originally by mixing the bloody labour of warriors with the soil. Private landed property and the trade therein by transfer of title and lease are relatively recent historically, and, only once private landed property is established can its rights be determined as a matter of commutative justice. Once the original acquisition of private property is widened beyond the appropriation of land it is easy to account for it, because private property in things can be acquired by hiring out one's labouring abilities. Such reified private property is then an individual's 'estate' which may be further accumulated. Upon further accumulation by means of saving it may even become entrepreneurial or finance capital or landed property. The entire system of private landed property depends on the establishment of the various fundamental value-forms required to constitute the gainful game. Today, the entire surface of the Earth, its land and its seas, has pretty much been carved up as sovereign state territories within which the rights of private landed property and sovereign land ownership apply. 

For a discussion of issues of justice in today's world it is best to restrict it to those societies in which the socio-ontological constellation of the gainful game holds sway. True, this socio-ontological constellation of historical being can only be seen by the philosophical mind; it is invisible to historians, journalists, politicians, empiricists, moralizing philosophers, etc. who are blinded by its obviousness. Nevertheless, to say that today there is such a thing as a globalized capitalist economy is to admit implicitly that underlying it all there is a definite value-form-determinate constellation of social being. A focus on a socio-ontological constellation is the philosophical alternative to other approaches to the question concerning justice, including social contractarianism in particular. 

6.3 An attack on libertarian freedom conceived as individual caprice 

LaFollette provides an example of how libertarian liberty is purportedly restricted: "The slave-holders' freedom [e.g.] was justifiably restricted by the presence of other people; the fact that there were other persons limited their acceptable alternatives. But that is exactly what the libertarian denies. Freedom, he claims, cannot be justifiably restricted without consent. In short, the difficulty is this: the libertarian talks as if there can be no legitimate non-consensual limitations on freedom, yet his very theory involves just such limitations. Not only does this appear to be blatantly inconsistent, but even if he could avoid this inconsistency, there appears to be no principled way in which he can justify only his theory's non-consensual limitations on freedom." (LaFollette op. cit.) The very nature of freedom, from the outset, must take into account that there is a plurality of human beings living on Earth and that the question concerning justice arises only when there is such a plurality, for justice concerns always relations with others. To imagine that there is first a solitary, free individual able to enjoy boundless liberty, who is then restricted in its liberty by the presence of others, is a misrecognition of the very nature of freedom. 

"So imagine with Hobbes and some libertarians that individuals are seen as initially being in a state of perfect freedom. In such a state, Hobbes claims, 'nothing can be just. Right and wrong have there no place.'(9) To introduce right and wrong of any sort is to put moral limitations on individual freedom. To that extent, everyone's freedom is restricted." (LaFollette op. cit.) The question concerning justice simply does not arise in an imagined state of nature, for it is a state of 'might is right' and anything but a "state of perfect freedom". LaFollette confuses freedom with the arbitrariness of individual will. Therefore, contrary to the assertion that the introduction of right and wrong puts "moral limitations on individual freedom", it is only when right and wrong are "introduced" that freedom comes about, for freedom means just relations among free individuals respecting each other as persons and entering into relations with one another on the basis of mutual agreement and with a view to mutual benefit. Freedom conceived erroneously as the arbitrary exercise of individual will is always restricted by justice. An individual does not have to "consent" to respecting others as likewise persons and private property-owners; rather, it is a demand of freedom to acknowledge other individuals as likewise free. LaFollette's line of argument is that, since even the rights of personhood and of private property require a non-consensual restriction of individual liberty (conceived as the caprice of individual will to do what it wants), and the libertarian is in agreement with such a restriction of individual liberty as just, then a fortiori the libertarian also cannot have any proper objection against distributive justice, which is likewise simply just another restriction of individual liberty conceived as caprice. 

LaFollette further claims, "Libertarians seem to desire a totally individualistic system in which one's interests never have to be weighed against anyone (or everyone) else's. But that is impossible." (LaFollette op. cit.) Libertarians, it is true, are concerned with defending individual freedom, which, however, is not a stand-alone property of an individual, but is of itself a specific historical form of sociation, of reified social relations among human beings sharing a world. This holds true even though there are certainly strains of libertarianism that also misconceive individual freedom as arbitrariness of individual will. The phrase, "totally individualistic", suggests that the individual claims the 'liberty' to do anything he or she wants, without taking consideration of others' presence in the world. An individual's interests are always "weighed against" everyone else's when the individual enters into social relations, which he must, in order to lead his or her life. It is the social relations, i.e. the interplay with others, that, in the first place, have to be free by virtue of mutual agreement, and only on this basis of mutuality can each individual's interests be furthered or frustrated. The interplay with others already offers resistance to individual will, for some kind of mutual agreement has to be reached. Achieving such an agreement, however, is a realization of freedom, not its frustration. 

"I have shown that neither property nor liberty (as defined by the libertarian) should be seen as the only social good; singling these out as the only social values is unreasonable. Instead, these should be seen as two values among many, all competing for recognition." (LaFollette op. cit.) If the 'absoluteness' of freedom (not just individualistic liberty conceived as arbitrariness of will) is relativized among a gamut of other desirable 'values' or 'goods' of living, such as a secure material standard of living, then it has to be questioned the extent to which these other goods can at all be reconciled with freedom in the sense of a free society. Otherwise, freedom becomes just one ill-defined 'value' among others on the shelf of the supermarket of values among which 'people' choose what they'd like to have in a 'free' society. By contrast, above (3. The gainful game among competitive players) we have seen that value is a socio-ontological concept requiring careful development. LaFollette's conception of what constitutes freedom in a free society is a perversion of freedom, which in truth is demanding and risky. If freedom is an essential hallmark of human being as such, and such freedom is and must be realized historically, apart from any other determinations, as the free individual, i.e. the freely sociating individual, then any undermining of the interplay of free individuals as the predominant form of sociation of a free society must be considered with due philosophical seriousness, and not by asking for 'people's' opinions and preferences. 

By equating the libertarian conception of liberty with the arbitrariness of individual will and its exercise, LaFollette misses the mark in his critique of libertarianism. This is not to say that there are not strains of libertarianism that proceed from the same confusion. Indeed, Nozickian libertarianism has to be saved from itself by pointing the way to a genuine socio-ontological understanding of the being of human freedom. From libertarianism and its critique we turn now to the other side, namely, to left-liberal justifications of distributive social justice, also known under the specious name of 'solidarity'. 

7. A closer look at Rawls 

7.1 The "original position" 

The First Principle of Justice: "First: each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others."(10)

The Second Principle of Justice: "Social and economic inequalities are to be arranged so that: a) they are to be of the greatest benefit to the least-advantaged members of society (the difference principle). b) offices and positions must be open to everyone under conditions of fair equality of opportunity." (Rawls 1971 TJ:303). 

"The basic liberties of citizens are, roughly speaking, political liberty (i.e., to vote and run for office), freedom of speech and assembly, liberty of conscience, freedom of personal property; and freedom from arbitrary arrest. However, he says: 'liberties not on the list, for example, the right to own certain kinds of property (e.g. means of production) and freedom of contract as understood by the doctrine of laissez-faire are not basic; and so they are not protected by the priority of the first principle.' (TJ:54 rev. ed.)"(11) A basket of basic liberties of citizens therefore is on offer in the First Principle, and classical libertarian rights of property are not in this basket, for that would be a barrier to the redistribution of wealth and income. This postulated basket of citizens' rights begs the question regarding the justification for such rights, for it must be asked whether each is in accordance with freedom or not, e.g. whether democracy as a form of government accords with freedom or not and why. Instead, a fully fledged democratic society with the usual rights is assumed as desirable. 

The Second Principle formulates a qualified version of egalitarianism that admits deviations from "social and economic" equality if a) a so-called maximin condition for those worst off is satisfied and b) if such inequality ensures equality of opportunity in competing for positions in social hierarchies and running for office in government. Thus a finished political constitution of society familiar in Western liberal democracies is set before those with a sense of justice choosing principles of justice from behind the veil of ignorance. Isn't the "basic structure of society" assumed in the original position (such as "the political constitution and framework for the legal system; the system of trials for adjudicating disputes", etc.) already too rich for consideration (whether agreement is reached or not) of justice and fairness? In other words, doesn't this "basic structure of society" itself have to be developed via a path of questioning thinking to decide whether it is just? 

The "veil of ignorance" is a way of abstracting from the particular interests aligned with the social situation of the social actors, in order to construct a hypothetical situation in which rational social actors with a sense of justice could reasonably agree on fundamental principles of justice. The veil indicates of itself, that the question of justice is one concerning universal issues of justice, freedom, well-being, the goods of living, etc. rather than the particular self-interests that individuals have and strive for. The veil, however, still allows the self-interested individuals sitting behind it to calculate likelihoods of their being dealt a bad hand in the allotment of social status, interests and abilities, and to decide accordingly, perhaps in favour of minimizing the risk of being placed at the bottom of the social pile. Abstraction is certainly basic to any philosophical thinking-through of phenomena and works by leaving aside certain determinations of the phenomena to concentrate on abstract moments. Such abstraction can also be called "bracketing-off" (Ausklammerung, Husserl). Such abstraction or bracketing-off is of quite a different nature than setting up a hypothetical situation, thought-experiment or 'model', which is open to the vagaries of what is to be imagined as being the case and the motivations, etc. 'if the situation were such-and-such...'. What is the appropriate level of abstraction for considering a fundamental concept of justice? Can this appropriate level of abstraction be achieved by hypothesizing a social situation behind a veil of ignorance? It is easy to see that Rawls' original position is biased toward distributive justice at the expense of the commutative justice of free and fair interplay among individuals. What justifies this bias? Is the tension between distributive and commutative justice to be resolved by despatching the latter into oblivion, that is, by 'forgetting' that there is a crucial issue here? (see below 7.2 Property-owning democracy) 

In contrast to an approach that poses the socio-ontological question, What is justice as such?, one commentator on Rawls, Fred D'Agostino, even claims that the Theory of Justice is not conceptual, but pragmatic, and from all that is assumed by the two principles of justice, this indeed seems to be the case. "Rawls's analysis was, then, what I will call pragmatic, not conceptual. ... It is, I repeat, a fact about how principles might function that justifies the choice of these principles as principles of social coordination for our society. That they enable 'each person to secure his ends' (Rawls), subject to certain circumstances, conditions, and constraints, is their justification, not that they reflect some antecedent understanding of what justice is, metaphysically or conceptually."(12) The principles of justice are to "function" efficiently to secure ends, to bring them forth as finished products on an ongoing basis, a productivist understanding of justice. Hence the bias toward distributive justice at the expense of commutative justice: with the modern welfare state there is an instance of control with the requisite 'vertical' political power that is responsible for distributing 'justly' material goods, at least, whereas commutative justice concerns the fairness of the games of recognition (esteeming each other, estimating each others goods = exchange-value) played 'horizontally' among the players of civil society. According to D'Agostino, "Rawls was trying to determine, in effect, which principles of sociability are fit to play a certain role in the organization of our collective lives". The original position, he claims, is set up with an eye to achieving "an overlapping consensus of the main substantive ethico-political doctrines current in a community". What is up for discussion and choice are conventional notions of justice current in a given society, such as certain citizens' rights, and above all two influential theories of justice: egalitarianism and utilitarianism. Is a conventional theory of justice the best that moral philosophy can do? 

This suggests that the original position is not so very original, that is, it is far from asking the originary question concerning what justice is per se, which is the truly philosophical question bequeathed from ancient Greek philosophy. D'Agostino admits this for, according to him, with Rawls' theory, "we are trying to design a tool for use by certain kinds of agents to accomplish certain sorts of purposes in a certain kind of environment, and our problem is one of practical functional design, not of conceptual analysis or metaphysical speculation about The Good or The Right." A tool purportedly has to be designed procedurally to achieve ends. Perhaps the answer to the originary question, What is justice as such?, is an unpleasant one for those behind the veil of ignorance seeking "an overlapping consensus" on a basket of conventional notions of justice, in the sense that they could not simply choose principles to secure their ends and well-being, but rather would have to accept that they not only come to enjoy a social life governed by principles of justice, but also have to live up to demands and duties of freedom and justice. The original position as a setting for a procedure for constructing principles of justice presupposes that people can pick and choose and calculate what they would prefer to have as principles to secure their ends connected with living well in society. It is not fortuitous that the proposed principles of justice in the original position are dealt with as if they were distributive principles, even those to do with civil liberties, as if they could be doled out and instituted by mutual consensus on the best arrangement for society, rather than being demands on and duties for free human being as such that guarantee no good as an end to be secured. 

When Rawls speaks of duty, he speaks of political duties vis-à-vis political institutions, such as "the duty to support just institutions" (TJ:93 revised ed.), although, he concedes, there is no "duty requiring all to take an active part in political affairs" (TJ:200). The duty for a member of society, as far as possible, to earn an income to support a livelihood is not mentioned, but only the right of the "least advantaged" to a minimum income governed by the maximin difference principle. According to one of Rawls' editors, Samuel Freeman: 

The difference principle (the first part of the second principle, through (a)), addresses differences or inequalities in the distribution of the primary goods of income and wealth, and powers and prerogatives of office and positions of responsibility. It basically requires that a society is to institute the economic system that would make the least advantaged class better off than they would be in any other feasible economic system, compatible with maintaining citizens' equal basic liberties and fair equality of opportunity. Rawls defines 'least advantaged' as the class of those persons with the least share of the primary goods of income and wealth, and powers and prerogatives of office. He assumes the least advantaged are engaged in productive activity of some kind. Rawls then regards distributive justice as the benefits that accrue to persons for doing their part in socially productive cooperation. The class of unskilled workers receiving minimum income satisfies his definition of 'least advantaged.' Disability payments for citizens who are handicapped and permanently unable to work are not then a matter of distributive justice, as Rawls construes it, but are instead covered by principles of assistance, which he leaves unspecified.(13)

7.2 Property-owning democracy 

It could be said that concentrations of capital and wealth, as concentrations of a specific kind of social power, distort both the playing of the gainful game and the political power struggles around the state, thus making both unfair in giving certain economic and political players too much weight against all the others. With regard to the economic gainful game, this distortion can be booked under the heading of commutative justice insofar as the conditions of fair play in the competitive struggle as a whole are distorted by monopolies and oligopolies. But Rawls argues for a breaking-up of concentrations of capital and wealth on the basis of considerations of distributive justice, namely, that they distort the distribution of incomes and of the weightings of citizens' rights in the political process, thus affecting its outcomes. Strictly speaking, the "fair equality of opportunity" (JT:303) Rawls invokes is an equality of potential to engage in competitive struggles for positions and offices as distinct from a fair distribution of actual outcomes of these struggles, but this distinction is ignored as if only functions and effects were at stake. The notion of "equality of opportunity" remains entirely diffuse due to utter neglect of the question concerning the mode of being of a power and potential, and that of a finished, actual presence. 

The problems of capital being concentrated in few hands are thus recognized by Rawls and a counter-measure proposed, whereas the problems of society's underdogs pursuing life-strategies relying chronically on welfare benefits handed out by a totally life-administrating state are not addressed. This is presumably due to the egalitarian biases in Rawls' theory that allow some sympathizers in the area of social policy to interpret the break-up of large capitals and agglomerations of wealth in conciliatory, harmonizing terms: "The argument for the justice of taxing large-scale wealth in order to secure the fair value of political liberties, institute meaningful equal opportunity, and improve the lot of the least well off in turn mirrors the larger Rawlsian argument for understanding society as a system of social cooperation aimed at realizing a common life characterized by fairness, as opposed to a game in which the aim is to accumulate as many assets as possible within the permissible rules."(15) Fair "social cooperation" is here contrasted with "a game" of asset accumulation within "permissible rules" which is presumably unco-operative and beyond the pale of fairness and justice altogether. For Williamson and O'Neill, "without the political capacity to break up large accumulations of wealth in practice, Rawlsian aspirations for realizing a just society based on the two principles of justice will remain tantalizingly out of reach" (ibid.). This raises the questions whether social living could ever be characterized throughout by co-operation to the exclusion of competitive power struggles in both the economy and politics, and whether the gainful game is per se unfair and unjust. The favouring of co-operation over competitive power struggles is an attractive moral stance for those seeking harmony and effective outputs but, measured against the socio-ontology of human being itself, is it not self-delusory and therefore specious? 

In his article 'Property in Rawls's Political Thought',(16) Quentin P. Taylor eloquently presses Rawls on the issue of his neutral, non-committal stance vis-à-vis the property regimes of capitalism and socialism. Taylor quotes Rawls, "the choice between a private-property owning economy and socialism is left open; from the standpoint of justice alone, various basic structures would appear to satisfy its principles" (TJ:228 rev. ed.) even while assuming a "competitive economy" (TJ:137). The late Rawls apparently overcomes this neutrality on such an important issue by coming down in favour of what he calls "property-owning democracy" in which, one would assume, there are secure property rights. Taylor, however, shows us through a judicious choice of quotations that this is not the case. The "allocation branch" of Rawls' proposed state is mandated with effecting "changes in the definition of property rights" (TJ:244). The "distribution branch" has the task of making "necessary adjustments in the rights of property [to] preserve an approximate justice in distributive shares" (TJ:245). Taylor concludes, "Even in Rawls's 'property-owning democracy,' then, private-property rights (outside of 'personal property') clearly are not secure. [...] The insecurity of property rights and the shadowy nature of property relations under Rawls's scheme would more likely create a climate of uncertainty, distrust, and complacency" (p. 397). The conception of a property-owning democracy goes beyond breaking up concentrations of capital and wealth that pervert fair, commutative competition to hinder plutocratic control of the economy and politics, to also 'readjust' property rights for the sake of secured distributive social justice. Taylor therefore suggests that 'property-owning democracy' is a misnomer and asks, "should it not be more accurately characterized as a species of socialism?" (p. 397)(17)

Indeed, it is apparent already from the "original position" that in his heart of hearts Rawls is an egalitarian: 

Since it is not reasonable for him [the hypothetical person in the original position] to expect more than an equal share in the division of social primary goods [including income and wealth], and since it is not rational for him to agree to less, the sensible thing is to acknowledge as the first step a principle of justice requiring an equal distribution. Indeed, this principle is so obvious given the symmetry of the parties that it would occur to everyone immediately (TJ:130).

This antinomy can be seen clearly from the vantage point of the socio-ontological constellation called the gainful game. The value-forms are generated originarily by the movements of individual freedom at play already in the form of sociation constituted by the exchange of abilities and their products. Once value gains a reified form of existence in money, nothing can stop its further unfolding to the freedom to hire labour power which is simultaneously the socio-ontological birth of capital itself as a value-form. Nothing, that is, except the suppression of the individual freedom of gainful interchange by a superior political instance, and even then, this is an ontic suppression, not a socio-ontological one. The nub is that where desirous, striving individual freedom is at play, there is also money as the reified, value-form medium of this interplay, and this reified social power, in turn, as capital is able itself to set labour power and means of production into movement on leased land. 

Rawls' conception of a 'property-owning democracy' contains an incoherence that necessitates draconian powers for a strong state that is assigned the task of continually curtailing and readjusting the individual freedoms of private property against immense resistance. The diverse private-property interests besieging the state have to be suppressed in favour of modified egalitarian redistribution not only of the economy's output as expressed in income through heavy taxation, but also of a politically coerced redistribution of the very income-sources of accumulated capital and land themselves. Given that Rawls nevertheless still proposes a market economy, this implies that the gainful game as a socio-ontological constellation could only go underground, being decreed unfair and unjust, or fair and just only up to a point, in Rawlsian terms. The inevitable result would include, on a massive scale proportional to the political suppression necessary, black markets and political corruption through which money would continue to unfold its irresistible social power nevertheless. 

8. Anomalies in the gainful game and the political power play 

The first duty of the state is the protection of personhood and private property, a duty that arises, as we have seen, of necessity from conflicts over the commutations of civil life. Personhood is the abstract-universal status of the individual human being under abstract right, and this status is the first civil right guaranteeing human dignity. The protection of personhood, i.e. of this first civil right, by the state is a matter of commutative justice, not of distributive justice. This point cannot be overemphasized, for it is fatal for all those approaches to the theory of justice that neglect and suppress commutative justice. Civil rights movements against social discrimination are movements against the wrong committed against the abstract and dignified status of personhood, and civil rights are grossly misconceived when they are treated as matters of social, distributive justice, i.e. as a matter of how citizens' rights are 'distributed' by the state and constitutionally guaranteed by it. It may disappoint some that civil rights movements could be booked first and foremost under the heading of abstract right rather than basking in the radiance of articles of the constitution, but the rights of personhood lie deeper than the state; they are a matter of natural right, properly understood as rights in the name of individual human freedom per se (insofar as we can still say today that it is the nature of human being to be free). The momentous struggles over the centuries for civil rights and against social discrimination should not be mixed up with issues of so-called distributive social justice. The ambiguity residing in the much employed and revered term 'social justice' is toxic and addles thinking on issues of justice. By banishing commutative justice from consideration, Anglophone justice theory has shot itself badly in the foot. 

It is not enough, however, for the state to protect personhood and private property, which are the forms in which the various value-forms, hidden as such from both the state and the players (because they do not think ontologically, that is, see speculatively), are preserved that enable the very movement of the gainful game itself. Apart from the issue of the fairness of the commutations, i.e. the interchanges, that are the metabolic synapses, or 'touchings-together', of the gainful game's movement, there is the major issue of the fairness of the gainful game as a whole, commonly and aptly referred to as the issue of the level playing field. This playing field is not to be level in only one plane, since it has many, many facets and so could be called a multifaceted polyhedron. The gainful game cannot be left to play by itself, for it can get out of kilter through its own movements under the impetus of the many players' playing strategies for gain. Freely working markets do not simply self-correct, or rather, their eventual self-correction can be a violent, disruptive collapse of the entire game. Laissez-faire capitalism can also push some players to the wall and make playing conditions altogether unfair. A major problem of the gainful game is that some players can become very big, so big, that the other players with whom they play have to accept grossly unfair conditions — the perennial problem of monopoly, oligopoly and cartels on markets of various kinds. 

Such monopolies can be labour unions which, through strike action, can hold an industry, a sector, the public or the government to ransom. Therefore the government legislates on industrial relations to lay down the rules under which industrial disputes over wages, working conditions, etc. are to be fought out. To be fair and just, the government must be even-handed in legislating to channel the ongoing struggle between functioning capital and labour (or, on an extended plane, between the state itself and its so-called public servants). 

The tendencies for the formation of monopolies, oligopolies and cartels, however, is far greater with capital because capital accumulates of itself, and capital accumulation is a major way in which an individual capital (a company, an enterprise) ensures its survival in the competitive struggle against other capitals. A company that does not grow steadily becomes endangered gradually in its very existence, and may be swallowed by another company. Capital accumulation also enables investments in productivity-enhancing technologies that also improve survival chances in the competition. But once a company has reached a certain size, it attains a market-dominating position that affects the fairness of competition in that sector, including not only competition with similar companies, and also bargaining leverage with suppliers and the power to set selling prices to consumers. In the name of justice as competitive fairness, the government is called upon to redress the competitive balance, perhaps by compelling the company to reduce its size through spin-offs, or perhaps by forcing a break-up of a huge monopoly. In particular, there is the issue of state-enterprise monopolies when the state itself becomes an entrepreneur providing, say, infrastructure (public transportation, roads and railways, telecommunications, etc., etc.). Such state monopolies may decree 'fair' prices as they think fit, or, if privatized, crush all competition through sheer size or lingering competitive privileges. 

One particular sector in which the sheer size of companies is a crucial issue for the fairness of the gainful game is that of finance capital. Finance capital (the private, commercial and investment banks plus finance companies of various kinds) has the function, above all, of providing the interest-bearing loan-capital (called 'leverage' in the U.S.) that lubricates the transactions in a capitalist economy. Such loan-capital is therefore the life-blood for the movement of the gainful game, and when it dries up temporarily, the movement freezes. The gainful game often gets out of kilter in the phenomenal form of a so-called 'credit crunch' that plunges the economy into recession or crisis. Recession is when the gainful game as a whole is not achieving gain, and crisis is when the gainful game is severely hampered, perhaps by the need for entire industries to restructure, which amounts to repositioning in the gainful game. 

Because the financial sector is so vital to the economy as a whole and also looks after people's savings, its strategies and playing conditions in the gainful game demand especial oversight by the state. The government must legislate banking legislation to ensure a proper level of prudence in banking activities. Prudence means appropriately assessing risk, limiting it, avoiding it, making provisions for it, etc. It may be viewed simply as tough luck when an individual enterprise pursues a poor, imprudent, risky strategy and goes bankrupt, but, because of its linch-pin role, there must be state agencies to oversee the financial industry in particular to keep it within acceptable bounds of risk, say, by restricting lending activities. Needless to say, overseeing risk and providing regulation for risk management is, of its nature, a risky undertaking, for the gainful game itself and the ever-new strategies pursued in search of gain are full of surprises never envisaged by financial legislation, and also entirely overlooked by supervisory authorities. The necessary regulation of rules of play in the financial sector is inevitably always behind the curve. 
 
A deeper-lying problem with capital accumulation, indeed, an immanent contradiction in capitalism itself, is that capital accumulation has no limit. Capital accumulation is enforced by competition as a survival strategy. When the gainful game is proceeding apace, its success goes hand in hand with capital accumulation. Accumulated capital, however, must find gainful employment in investment. Such opportunities for investment at any given time are limited, not only by a national economy, but in the global economy. Accumulated capital must set a profitable process into motion, whether it be in the productive or circulation sphere, and to do this, suitable means of production and circulation, labour power and land are required. Labour power may not be adequately skilled, land not sufficiently fertile, etc., or there may be deep-seated political impediments such as illiteracy or the insecurity of legal title to land. The misproportion between accumulated capital seeking a sphere of investment and the finite availability of the factors required for a profitably functioning capital is called overaccumulation of capital. Symptomatic of capital overaccumulation are pressure on interest rates and ever riskier investments required for a merely modest yield. 
 
Since overaccumulation is a result of unlimited accumulation, its resolution lies first of all in the periodic destruction of capital in so-called "cleansing crises" (Reinigungskrisen, Karl Marx), so that the Sisyphean movement of accumulation can start all over again. Alternatively, accumulated capital must find an unlimited fertile field for investment, and this resides in the unlimited possibilities for the exercise of human powers in mutually beneficial exchanges. For this to happen, the accumulation of capital must be in step with the growth of opportunities for human powers and abilities to be set into motion for each other's benefit. Apart from the political, economic, historico-cultural impediments to human individuals' developing their abilities to an extent where they successfully can enter the gainful game, there is never any guarantee that the total accumulation of capital will not outstrip the total availability of suitable labour powers and land (or waters). Nevertheless, the nurturing of human abilities to provide ever more ingenious benefits on a mutually gainful basis is a way to avoid or ameliorate or postpone a situation of pernicious capital overaccumulation, and that without necessarily putting more pressure on the Earth's finite resources in the name of a voracious 'economic growth'. 

A further major problem (seen by Rawls in proposing his property-owning democracy) is the influence that huge, accumulated capitals (also private moneyed wealth, which in turn is always invested in some way or other) has on government and the democratic election process in particular. Private interests lobby government, and large moneyed private interests have the social power to lobby most strongly of all. They may also buy ownership control of the mass media of public opinion. This is the issue of political plutocracy which, through the power of money, can severely distort the workings of government and the state to ensure the fairness and also the prudence of gainful game as a whole. Money as reified social power thus distorts political power. The government may legislate to limit the political influence of accumulated wealth and the interests of big capital, but even this legislative activity is itself exposed to lobbying and hence may have its teeth drawn. Therefore fair play in the gainful game and the proper function of the state in ensuring fairness of play may be put in jeopardy by the power of accumulated capital and wealth. 

Furthermore, actions by the government in pursuit of policies of (re)distributive social justice may not only impair the fairness of the gainful game (say, by legislating immoderate job protection), but restrict its overall functioning and success (say, preventing restructuring by protecting social inertia). For those under the influence of conceptions of social distributive justice, the freedoms of the gainful game are dispensable and even morally dubious. The claims of property-ownership and income-earning are subordinated to policies of redistribution for the sake of total social well-being and in the name of social justice. The fault line between commutative and distributive conceptions of justice, i.e. between the rights of property and striving for income, on the one hand, and the secured rights of material well-being, on the other, is one of the major splits in people's ways of understanding the social world. This right-left split is played out as a perennial power struggle in democratic politics that never attains a final state of equilibrium.